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09 July 2018

105: Employment Appeal Tribunal confirms that cycle courier was a worker, not an independent contractor

In Addison Lee Ltd v Gascoigne, the Employment Appeal Tribunal (EAT) has upheld the decision of an Employment Tribunal that a cycle courier was a worker and not a self-employed independent contractor. He was therefore entitled to paid annual leave under the Working Time Regulations 1998.

Mr Gascoigne worked as a cycle courier for Addison Lee Ltd for nine years. His contract described him as an independent contractor and stated that nothing in the contract would render him an employee or worker. It also stated that Addison Lee had no obligation to offer him work and that he had no obligation to accept work. However, once he was logged into a company palmtop computer or app, he would be deemed to be available. Mr Gascoigne could choose the days and times when he was available for work, and in practice his working pattern was very variable. He was paid a piece rate set by the company, with a fixed rate for waiting time. Amounts in respect of insurance and administration were deducted weekly. Mr Gascoigne brought a claim for holiday pay in the Employment Tribunal.

The Tribunal concluded that the contractual documentation did not reflect the reality of Mr Gascoigne’s relationship with Addison Lee and that he was a worker, not an independent contractor. He was therefore entitled to holiday pay. Mr Gascoigne was obliged to perform work personally for the company, under its control, and there was sufficient mutuality of obligation whilst he was logged on to the app. It was also relevant that Addison Lee couriers had to pass criminal record checks, so that Mr Gascoigne had no right to send a substitute if he was unable or unwilling to work. The Tribunal noted that the company’s website was at odds with the arms-length relationship described in the contract, for example, by referring to its ‘team’ of couriers.

The EAT rejected Addison Lee’s appeal. The Tribunal had correctly concluded that the requisite mutuality of obligation existed whilst Mr Gascoigne was logged on to the Addison Lee app since he was available and willing for work during that time. The EAT rejected the company’s contention that there was no mutuality of obligation because he was entitled to log on and off at any time.

This decision illustrates again that Tribunals are prepared to look at the reality of working relationships in gig economy cases, rather than relying on the contractual provisions. The EAT’s findings in this case were similar to those reached in the decision on Uber’s drivers, which is due to be heard by the Court of Appeal in October 2018. However, it is important to note that despite similarities in the recent cases on couriers and taxi drivers, employment status will always depend on the precise facts and circumstances. For example, the Central Arbitration Committee has ruled that Deliveroo riders are not workers, mainly because of their almost unfettered ability to send a substitute, meaning that there is no obligation of personal service.

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